Anthony King v Public Prosecutors of Villefranche Sur Saone France
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins,Lord Justice Lloyd Jones |
| Judgment Date | 17 December 2015 |
| Neutral Citation | [2015] EWHC 3670 (Admin) |
| Docket Number | Case No: CO/3498/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 December 2015 |
[2015] EWHC 3670 (Admin)
Lord Justice Lloyd Jones and Mr Justice Collins
Case No: CO/3498/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Miss Clare Montgomery, QC (instructed by Henry Milner) for the Appellant
Miss Emilie Pottle (instructed by Crown Prosecution Service) for the Respondent
Hearing dates: 4 th December 2015
This is an appeal under Section 26 of the Extradition Act 2003 (the 2003 Act) against the decision of District Judge Zani on 21 July 2015 whereby he ordered that the appellant should be extradited to France pursuant to an European Arrest Warrant (EAW) which had requested his return to serve a sentence of 5 years imprisonment following his conviction of three offences. A number of defences were raised before the District Judge but leave to appeal was limited by Cranston J to one ground, namely that the EAW failed to comply with section 2(6)(b) of the 2003 Act and so the EAW was invalid.
The three offences of which the appellant had been convicted were that he:-
"• Willingly participated in an operation of placement, concealment or conversion of the proceeds of an offence to the drugs law.
• Committed the customs and excise offences of laundering money coming from drug traffic.
• Omitted to abide by the obligation of declaring money concerning sums imported to France."
The circumstances in which the offences had been committed were stated thus:-
"Arrested on February 11, 1996 at the toll of the motorway in Villefranche Sur Saone in a vehicle containing many bags with bank notes (a total of 162,300 £). The vehicle, bags and hands of Mr King reacted positively to the cocaine test. The enquiry permitted to establish that this money was related to drug trafficking".
The 2003 Act gives effect to the Council Framework Decision of 11 June 2002 which established the EAW procedures. In Article 2(2) it sets out a list of offences which, provided they carry a maximum sentence of at least 3 years imprisonment or detention, give rise to surrender pursuant to an EAW without any need to verify dual criminality. This list is included in the form set out in the Annex to the Framework Decision which should be used. The list in Article 2 and in the annex includes "laundering of the proceeds of crime". The EAW used by the respondent omits this offence (we were not told why) and the offence identified as applicable is "illicit trafficking in narcotic drugs and psychotropic substances".
On the day of the hearing before the District Judge it was said on the respondent's behalf that the particulars set out in the EAW were inaccurate. The appellant's hands had not tested positive for cocaine and there was no forensic evidence supporting the police officer's roadside testing or indicating that the cocaine detected was at an evidentially significant level. But there was further information which had been produced from the judgment of the convicting court. This, so far as material, showed that the car which was investigated was being driven by a man called John Foy and the appellant was the passenger. When the car was examined, by what is called a system for detection of drugs, there was a positive reaction to cocaine. In what is described as 'the cavity in the back wings' there were found 35 bags containing a total of £162,330. There were two return tickets for a crossing from Dover to Calais at 9.30am on 11 February 1996 and return at 5.45pm. A subsequent test showed that Foy's hands reacted positively to cocaine. The appellant said that half the money was his, the other half being Foy's, and that it was to purchase a villa in Spain. Subsequently, he changed his story saying that the bulk of the money belonged to Foy who had asked the appellant to accompany him and to say if there were any problems that half the money was the appellant's.
Part 1 of the 2003 Act was intended to effect the transposition of the Framework Decision. In Office of the King's Prosecutor, Brussels v. Cando Armas [2006] 2 AC 1, Lord Bingham observed at paragraph 8 (p2E):-
"Part 1 of the 2003 Act did not effect a simple or straightforward transposition, and it did not on the whole use the language of the Framework Decision. But its interpretation must be approached on the twin assumptions that Parliament did not intend the provisions of Part 1 to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of cooperation by the United Kingdom than the Decision required, it did not intend to provide for less."
Thus in considering s.2(6)(b) of the 2003 Act, it is necessary to consider the material provisions of the Framework Decision.
Article 8 is headed "Contents and form of the [EAW]". 8(1), so far as material, reads:-
"The [EAW] shall contain the following information set out in accordance with the form contained in the Annex:
(d) the nature and legal classification of the offence particularly in respect of Article 2.
(e) a description of the circumstances in which the offence was committed, including the time, place and degree of participation of the offence by the requested person….."
Article 4 sets out a number of situations which give grounds for optional non-execution of an EAW. Article 4(7) provides that the executing authority may refuse to execute an EAW:-
"where the [EAW] relates to offences which
(a) are regarded by the law of the executing Member State as having been committed in whole or in part in the territory of the executing Member State or in a place treated as such…."
The purpose of this is obviously to enable the executing state to prosecute the requested person itself or to use the conduct the subject of the EAW in a prosecution which could perhaps be for more serious offences or where other defendants are involved and for which the conduct would provide helpful evidence. Article 3 gives grounds for mandatory non-execution. It is not necessary to specify other than that in 4.7(a).
It is to be noted that Article 8 does not differentiate between accusation and conviction cases in what is required to be included in the EAW. Section 2 of the 2003 Act is intended to transpose Article It provides separately for information which must be included in an accusation (s.2(4)) and a conviction (s.2(6)) warrant. So far as an accusation warrant is concerned, s.2(4) provides that the information required is:-
"(c) particulars of the circumstances in which the person alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any other provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence….."
Section 2(6)(b) provides simply that what is required is "particulars of the conviction".
In her skeleton argument, Miss Montgomery contended that even with the inaccurate statement that the appellant's hands had reacted positively to the cocaine test, the particulars were insufficient to comply with the requirement of s.2(6)(b). If the inaccurate statement was removed, the lack of compliance was the more obvious. In her skeleton argument she did not seek to question the decision of this court in Sandi v. Romania [2009] EWHC 3079 (Admin) that the distinction between ss2(4)(c) and 2(6)(b) meant that the same level of particularity was not required for conviction warrants as for accusation warrants. She has argued before us, however, that that is not correct and that the same level is required since Article 8 draws no distinction between the two warrants. Miss Pottle, as we, did not appreciate that this argument was to be deployed, but it is obviously of considerable importance and we have felt it right to deal with it. I should say that Miss Pottle submitted that in the circumstances of this case the argument did not assist the appellant since the particulars given were sufficient whether this had been an accusation or conviction warrant.
Miss Montgomery relied on what Lord Hope said in Cando Armas. His reasoning was agreed with by the other members of the appellate committee. In paragraph 27, he said:-
"The contents of the warrant are crucial to the operation of the system which has been laid down in Part 1. Section 10(2) states that the judge must decide whether the offence specified in the warrant is an extradition offence. That expression is defined in sections 64 and 65 of the Act……What does matter is that the Part 1 warrant is the initiating document in all cases, irrespective of whether the offence is within the framework list and irrespective of whether the double criminality requirement which is dispensed with in the cases referred to in sections 64(2) and 65(2) applies to it".
He continued in paragraph 28 to make the point which is of fundamental importance that if the warrant does not conform to the requirements set out in section 2, it will not be a Part 1 warrant within the meaning of that section and Part 1 of the Act will not apply to it.
In paragraph 31 of his speech, Lord Hope said:-
"Section 2(4) requires particulars to be given in accusation cases of the circumstances in which the person is alleged to have committed the offence, including the time and place at which he is alleged to have committed it. The requirement is absent from the list of particulars in section 2(6) which must be given in conviction cases. Its omission from this list in section 2(6) is hard to...
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